This blog functions like an exhaust valve to bring out my cluttered and sometimes confused thoughts. Please give your comments so that we can make this more useful, with wider perspectives. You may find my micro-blogs on Twitter @jay_ambadi.

Wednesday, July 10, 2013

Fake Encounters: Myths and the Reality

In this post, I will try to
summarize the arguments that I get to read on the issue of fake encounters, in
the context of Isharat Jahan case. I
consider most of these arguments as mere myths generated either to protect the
involved people or due to a genuine ignorance of rule of law and natural
justice principles. I will record my counterarguments against each of these
myths, under the heading reality. Of
course, the reality as I perceive it and, therefore, readers are free to
disagree with them. Also, this is not a comprehensive list of issues concerning
the subject.

I would not comment on the guilt or
innocence of either the victims or the accused police officers as I genuinely
believe, it is for the courts to decide after appreciating all the evidences
and arguments presented. What I am
stating here are only those generic points that would apply to any case of
alleged fake encounter. Ishrat Jahan case is only acts as a context for the
discussion.

Finally, this post is not to
support or defend any groups or terrorists, but to ensure that our nation remains
morally and legally superior to all such evil forces.

Myths

Reality

All those who question fake encounters are traitors and
anti-nationalists

Nation is not a piece of real estate, but its people. If those people
are killed other than through due process of law, every true loyalist of the
nation will question it.

At least some loyalists would like to see the State behaving in a better
manner, and adhering to better values than terrorists who are out to destroy
the nation.

Fake encounters happen throughout India

All the more reason to pursue cases that manage to reach the stage of investigation
or prosecution, to its logical conclusion.
No civilized nation can treat fake encounter murders as an acceptable
practice.

The argument that guilty escaped prosecution in many cases is not a valid
defense in any other case. If one knows details of other such cases they
should pursue those cases as well, and ensure punishment to the guilty
instead of using that knowledge to defend the accused elsewhere.

Ishrat was a terrorist.

Whether she was a terrorist or not is irrelevant in a case of fake
encounter. Indian Laws do not permit custodial murders of even hard core
terrorists.

There is no evidence to that effect other than unverified statements
and alleged intelligence inputs. No cases were filed against her. No look out
notice or rewards were declared on her.

Even if there were credible evidences suggesting that she was involved
in terror activities:

1.She
should have been interrogated by various agencies to find more about the
terror nexus

2.She
should have been given an opportunity to defend the charges and prove her innocence

Ishrat was in the company of two Pakistani terrorists

Again irrelevant, as far as the charge of custodial murders are
concerned. It would have been relevant if Ishrat herself was on trial for her
alleged terror links.

There are counter allegations that these two alleged Pakistanis were
in the custody of same accused police officers for much longer period and,
therefore, Ishrat could not have been with them.

In any case, these are circumstantial facts that investigators have
to convince the court. Why prejudge and object the very investigation?

Ishrat Jahan case is given importance because of Narendra Modi’s
involvement.

As of now, investigating agencies have not named NaMo of anyone in
his Govt. If they find evidence of their involvement, they should not be exempted
from the law of the land.

There is nothing wrong in politicizing illegal acts of Govts. Nation
cannot afford mutual protection by political parties. If rulers from one
party commit a mistake, the opposition must take it up and ensure justice
done. Similarly, if a party in power commit crimes the Govt that succeed must
not help in pushing them under the carpets but ensure prompt prosecution.

Narendra Modi is being projected as the principal opposition BJP’s PM
candidate. So, it is natural for media and people to look at how his Govt is
dealing with such investigations and allegations so that everyone knows what alternative
we are likely to have if the present rulers are voted out.

This case is a CBI and Congress conspiracy

CBI did not get involved in this case suo moto. They were asked to
investigate by the High Court of Gujarat, at the suggestion of Gujarat Govt
itself.

Again, it was not Central Govt that pursued the matter. In fact, they
are alleged to have stone walled initial inquiries to protect the involved IB
officer. It was only when Judiciary acted on the complaints, everyone was
forced to act.

Ishrat case gets publicity only because she is a Muslim

Only such people who consider Ishrat a terrorist only because she is
a Muslim, can advance such an argument.

There were enough cases and convictions in the past involving Hindu/other
victims. Difference was that in no such cases there was so much noise being
made in favour of accused murderers.

Questioning fake encounters affect morale of the forces.

Morale cannot be based on license to commit murders. Men in uniform
were punished in many false encounter cases in the past. If those instances
did not affect the morale, one more such case will not affect it.

Threat to life of our own citizens is a not a price that we can
afford to pay for keeping high morale of misguided people in forces.

Police has a right to conduct encounters and kill terrorists to
protect innocent citizens

It is true that police has the right to shoot and kill in an armed
conflict with terror suspects. However, that power is very limited and not a
license to murder at will. Good faith and justification for shooting must be
established by the concerned officers.

This case will destroy our intelligence gathering

That is a very poor opinion on our intelligence agencies. Merely because
one of their officers is accused (not yet done) of taking part in a deliberate
conspiracy to murder some innocents, for whatever reason, our intelligence
officers will not change their allegiance and loyalty towards the nation and its
people.

Police acted on the intelligence inputs to protect the CM

Intelligence inputs are not sacrosanct evidences. They are mere
inputs (often received from questionable sources) for the police to verify
and proceed further.

Reader may consider that in most cases where terror attacks really took
place, intelligence inputs were not enough to pin point the suspects as to
prevent the attack itself. The inputs in all those cases were mostly generic
in nature. Only in those different cases where alleged terrorists were on
their way to kill Gujarat CM Narendra Modi, the inputs were so precise that
Gujarat encounter teams could intercept and eliminate them well in advance.
Isn’t something fishy?

Also, please note that the intelligence inputs and encounters stopped
abruptly after the so called encounter team ended up in jail. Logically, shouldn’t
terrorists be increasing their efforts since these brilliant encounter specialists
are either absconding or in jail? Instead, they just stopped their attempts. Again, something very fishy?!

Encounters and Fake encounters are same

These two are as different as it can get. Encounter comes under genuine use of force
to counter an attack on the police or to take custody of suspects.

However, fake encounters are nothing but custodial murders of suspects,
already in custody. This is what our Supreme Court had to say on such
killings :

“Fake encounter killings by
cops are nothing but cold-blooded brutal murder which should be treated as
the rarest of rare offence and police personnel responsible for it should be
awarded death sentence. They should be hanged”

Our judicial system is lenient to the terror suspects

I agree there is a delay in our judicial process, primarily because, unlike
people on the street judiciary cannot arrive at judgments without
appreciating all available evidences and arguments.

Once a person is caught and put on trial, that person’s ability to do
any further damage is nil. At the same time that person can be a source for
much more information about the terror networks. Killing them deprives us
such insights.

The difference between a terrorist and a police officer is that the
latter is here to protect our people and systems while the former is here to
try and destroy both. If our police officers indulge in destroying our rule
of law and justice systems that will only further the objectives of
terrorists who are out to prove our nation as a failure!

If you question these officers how do you justify anti-Naxal
operations and anti-terror operations in North-East or J&K?

Again, the comparison is out of sheer ignorance of military
operations. In any genuine encounter, our soldiers operate under the risk of
getting killed from a counter attack. It is this assumption of risk to one’s
own life that makes such encounters legal and an act of bravery.

If some soldiers or policemen commit murder of people already in
their custody, there is no risk or bravery involved. So, such a comparison is insulting to a
true soldier.

Pease note that even in our Army, there were cases of fake encounters,
allegedly conducted for medals and glory. The fact that our Army did not
protect its officers in such cases must say something to the protectors of
Police officers who are accused of custodial murders.

Those who indulge in terror cannot claim right to fair trial.

Such an argument may suit lynching and mob-justice, but definitely not
to the rule of law.

We have seen cases (latest is a Mumbai court verdict sentencing as
many as 13 policemen in a case where they apparently undertook a contract
killing in the name of encounter of an underworld member) where policemen are
accused of implicating innocent persons to please their political masters or
bribe givers. Nobody can say our police
forces consist only of angels that they will never accuse any innocent
person, of any crime. Therefore, if a person is accused of any crime, that
person must get the right to defend his innocence, before a court.

Why should I worry about fake encounters since I do not indulge in
any illegal activities?

That question comes from the presumption that police is always right
when they charge any person of crime. As explained above, there are black
sheep even among policemen.

What if, tomorrow you cross the path of an evil policeman or
politician and he uses his contacts to create some flimsy evidence against
you, and eliminate you?

If you still think it will never happen to you since you will never
cross the path of policemen of politicians, you may read
about a shocking incident that occurred in the heart of New Delhi, on 31st
March 1997, when some overzealous policemen did not think twice before
shooting to death two unarmed businessmen on mere suspicion that one of them
might be a dreaded criminal on the run.
Police did not even consider it necessary to verify the identities of
the suspects, in spite of following them for almost whole day. Supreme Court
observed, “The possibility of a hefty cash reward and accelerated promotion
acted as a catalyst and spurred the police party to rash and hasty action”.

A middle ground between red tapism, in the enforcement and judicial arena, and fake encounters is what we need. This post very methodically sums up the prejudices and truths with regard to the grey areas of natural justice for terror suspects, and it does so from the point of view of a lawyer who has got his priorities straight. @gowryrowdy

Agreed to most points. Regarding morale of forces I believe it will definitely reflect in the way they now start approaching any intelligence treads. I do agree IB should be responsible for the information they provide to authorities but one must understand the fact that the nature of their profession is not very easy,its highly complex and demand aggression and swift decision making. If they are thrown down for heavy scrutiny and interrogation they may even delay their process of passing their intelligence info to govt and police due to the fear factor which will impact very important national security decisions.This could be a very probable flip side.However, its a good read!

The police engage in fake encounters because they are frustrated that criminals captured with a lot of effort sometimes get away.

You say "Once a person is caught and put on trial, that person’s ability to do any further damage is nil" Can we forget the IA814 Hijack, Kandahar incident, where the passengers were then set free in exchange of Terrorists. Can the court of law guarantee similar situation won't occur again?